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Expungement and Being a “First Offender”

| Mar 25, 2020 | Firm News |

In Virginia, you may seek an expungement if you are charged with the commission of a crime and (1) are acquitted, or (2) [a] nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151. Va. Code § 19.2-392.2(A). Where does this leave a person who is granted the “first offender” status under Va. Code § 18.2-251?

Recently, the Court of Appeals analyzed the case of a person charged with possession of marijuana under Code § 18.2-250.1 and who pled nolo contendere in Circuit Court. The court accepted the plea, and deferred the proceedings pursuant to Va. Code § 18.2-251. Upon successful completion of the terms imposed by the court, the court would dismiss the charge. The defendant successfully completed all obligations imposed by the court and the charge was dismissed.

The court ordered one year probation, suspended the driver’s license for six months, ordered the payment of the cost of the proceedings within six months, successful completion of any substance abuse program as directed by the probation officer, completion of twenty-four hours of community service, and remain free from using drugs and alcohol. On October 23, 2002, the circuit court ruled that the defendant satisfied all obligations and dismissed the possession of marijuana charge. At no time did the trial court state that there was a finding of guilt or that there was evidence sufficient for a finding of guilt years after this person filed a petition for expungement.

Years after this first proceeding, this person filed a petition for expungement stating that the charge was dismissed upon successful completion of the court-ordered obligations, much like an accord and satisfaction. After a hearing, the trial court found that “unwarranted damage occurred…and may occur in the future” if the arrest record is not expunged. The trial court also found that, even though the court had treated the defendant as a first offender, the court’s order doing so failed to “reflect a finding of guilt or that the evidence would have been sufficient for a finding of guilt.” This dismissal was compared to an accord and satisfaction, which would qualify the defendant for expungement because it was “otherwise dismissed” within the meaning of Code § 19.2- 392.2(A).

The Commonwealth argued that expungement is designed for “innocent” citizens and a charge dismissed pursuant to a first offender statute is not “otherwise dismissed” as required by Code § 19.2-392.2(A); thus, it may not be expunged. Remember, though, that the first offender statute (§ 18.2-251) requires a court to find evidence sufficient for a finding of guilt prior to placing a defendant on first offender status. The court never found sufficient evidence to find the defendant guilty.

Why wasn’t the record expunged? Nolo contendere is not a confession of guilt and has no effect beyond permitting the court to impose sentence in a particular case. A defendant “implies a confession . . . of the truth of the charge . . . [and] agrees that the court may consider him guilty” for the purpose of imposing judgment and sentence. A defendant cannot be considered “innocent” as contemplated by the expungement statute when he or she enters a plea of nolo contendere and the trial court finds that the evidence was sufficient to prove his or her guilt.